Tuesday, November 03, 2020

Ah, The "Gold Standard" Of Civil Presidential Politics

I don't give shit whether Trump concedes tonight or not.  A) I truly doubt he will.  B) It doesn't make any difference.

Al Gore conceded the race in Florida.  Then he reconsidered and said, "Fuck it, I'm in!"  That's one reason (not the only one) that race ended up in the Supreme Court (and to repeat myself ad nauseum, Bush v. Gore was per curiam (unsigned, with no opinions issued until later; I remember assuming Scalia had written the "opinion" that was released.  Turns out Rehnquist wrote the majority opinion.) and declared not to be "precedent" because there is a bedrock rule of elections:  COURTS. DO. NOT. INTERFERE.

This is the reasoning behind the Purcell decision, which says federal courts should not change the rules of the election too close to the election, i.e., when it will be seen as affecting the outcome (even if it doesn't) and as confusing voters ("Can I vote in my car?" is the classic example right now).  COURTS. DO. NOT. INTERFERE.  It isn't their job.  That's actually the reasoning behind Rehnquist's argument in Gore, that courts should not substitue their judgement for the plain language of the statute, because Art. II.  Except any school child can tell you there is no "plain reading" of a statute, or of any text.  The 5th Circuit never got to the question, but is a tent (Harris County has set up several for early voting) a "building" within the meaning of the Texas Election Code?  Yes?  No?  Who's interpretation is the one the Lege meant?  Who the fuck knows?  There are rules for statutory interpretation, but is that what Art. II requires, especially since those rules were developed by the courts after Art. II was accepted as the foundational legal document of the land.

These arguments for certainty are all garbage, in other words.  It's barely a step removed from "originalism," which you know I consider to be utter bullshit made up by Scalia so he could buffalo people with his legal reasoning.  Today we call that a "distraction."

But the Holy Grail of American political reporting is whether or not one candidate in the race "concedes." That's the civil (in the sense of civil society, not law) action, the one they wait for breathlessly as proof there will be a "peaceful transfer of power."*  It's as meaningless as the news outlets that "call" the election.  Again:  Florida, 2000.  The only vote that counts is in the electoral college, the only vote counts that count are those made by the counties of the 50 states according to 50 state's laws.  That's the system; that's how it works.  Whether or not a candidate concedes, one of them loses, even if it's by a toin coss (not an option for the President, btw).  What matters are votes and the rule of law.

What doesn't matter is what any candidate declaims, declares, or demands.  If Trump does nothing else for us, let it be that he teaches us that lesson.

I'm not holding my breath.  Besides:

Read the handwriting on the wall.

And while I'm picking on Aaron:

Can we look at the voter turnout in the past weeks and (hopefully) today and put a stake through the heart of the undead argument that we are "numb" to Trump's lies and activities?  Because of the way impeachment is written into the Constitution, by people who hoped against hope political parties would not exist in America (but did before the Constitution was 10 years old), we couldn't get Trump out of office until today.  Numb?  Am I the only one who remembers the march on Washington after Trump's inauguration?  Or the marches this summer across the country?  Numb?  Who the fuck is numb????  Outraged, angry, determined, yes.  Numb?  Speak for yourself.  The rest of us don't live by the common narrative making the rounds of the internet.

*I still mock that phrase because what is Trump gonna do, call up the National Guard to surround the White House and defend his claim to the office?  The Army, the Navy, the Marines on the grounds (are they even armed?).  The Secret Service?  All those people take an oath to the Constitution.  Any one of them who acts to protect Donald Trump's claim to the office if he's lost the electoral college vote (the vote that counts) is guilty of several violations of law, not to mention their oath.  Trump, do violence?  He's more likely to try to lock himself in the bunker.  If he goes out screaming and trying to take the drapes with him, is that still "peaceful"?  Good enough, he won't be back except as a visitor.
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1 comment:

  1. The Thought Criminal2:36 PM

    Easily a large part of the media are numb, but they're paid to be. I do agree that if Trump loses by even one percent he'll cave because it's what he does. This will be just another bankruptcy to him, he figures there's some front for some despot somewhere who'll bail him out. Why should he figure there will finally be consequences? It's never been his experience in more than seventy years. I do think he'll "self-pardon" or he'll flee, probably before his term is over. He won't want to take the chance of being arrested as soon as the clock ticks one second past noon.

    That said, I won't stop being nervous until it's over. I just hope the Republicans have a bloodbath they never recover from and that the Democrats can nullify the McConnell capture of the courts. I hope Sheldon Whitehouse already has the requests for information ready to issue as soon as the results are clear. I can't imagine Barr is going to last. It's one of my few consolations about what I think is coming that Trump will make him his fall guy and won't issue a pardon for him.

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